Bourne Leisure Ltd v Marsden [2009] EWCA Civ 671

Facts

• Callum Marsden, a child, was staying with his family at a holiday park operated by Bourne Leisure Ltd.
• The park featured a lake, which was a natural feature of the premises.
• The lake was surrounded by a fence and warning signs indicating deep water.
• Despite these precautions, Callum managed to access the lake and fell in, sustaining serious injuries.
• The parents brought a claim against Bourne Leisure Ltd alleging breach of duty of care under the Occupiers’ Liability Act 1957.
• The claimants argued that the fencing was inadequate and that more robust safety measures, such as a higher fence or a locked gate, should have been implemented.
• Bourne Leisure Ltd maintained that it had taken reasonable steps to ensure safety and that the risks were obvious and characteristic of the park’s natural setting.

Issues

1. Whether Bourne Leisure Ltd had fulfilled its duty of care to visitors, particularly children, under the Occupiers’ Liability Act 1957 with regard to natural hazards such as lakes.
2. Whether reasonable steps, rather than absolute safety measures, were sufficient for occupiers in the context of natural environmental features.
3. Whether the specific precautions (fencing and warning signs) taken by Bourne Leisure Ltd were adequate to discharge its duty of care.

Decision

• The Court of Appeal found that the duty of care under the Occupiers’ Liability Act 1957 is not absolute; occupiers are not required to eliminate all risks, especially those characteristic of natural features.
• The court concluded that the presence of a fence and warning signs constituted reasonable steps to mitigate foreseeable risks posed by the lake.
• It was held that the fence, though not impenetrable, was sufficient to deter unsupervised children and that the risks from the lake were obvious to visitors.
• The court determined that Bourne Leisure Ltd had not breached its duty of care and was not liable for the injuries sustained by Callum Marsden.

Legal Principles

• The Occupiers’ Liability Act 1957 imposes a duty of care on occupiers to take reasonable—not absolute—steps to keep visitors safe from foreseeable risks.
• Occupiers are not required to eliminate all risks present in natural features of the environment, such as lakes or ponds.
• Reasonableness is the standard by which courts assess whether an occupier has discharged its duty.
• Visitors bear some shared responsibility to exercise caution and heed warnings, particularly regarding obvious hazards characteristic of the environment.
• The decision aligns with previous judgments (e.g., Tomlinson v Congleton Borough Council [2003] UKHL 47; Ratcliff v McConnell [1999] 1 WLR 670) affirming limits on occupiers’ liability for natural hazards.

Conclusion

The court clarified that occupiers are not compelled to remove all risks from natural features but must take reasonable measures for visitor safety. Bourne Leisure Ltd's actions met the required standard, and the claim was dismissed, reinforcing a balanced approach between occupier liability and acceptance of environmental risks.